Discrimination Law Review and Study on Anti-discrimination Law for LGBTI

At about this time last year, the Equal Opportunities Commission (the “EOC”) conducted the Discrimination Law Review (the “DLR”) and the Feasibility Study on Legislating against Discrimination on the Grounds of Sexual Orientation, Gender Identity and Intersex Status (the “Study”), prompting social controversy.

One notable phenomenon was that false rumours were being spread online, such as the – entirely untrue – allegation that the EOC had suggested new immigrants would have the right to vote even when they had not resided in Hong Kong for 7 years. Numerous submissions were made which ultimately led to the breakdown of the submission system near the original deadline for submissions. These developments prompted the EOC to issue clarifications to the media and extend the deadline for submissions.[1]

The DLR was a comprehensive review of the current anti-discrimination regime. The proposals it considered included the merger of the four existing ordinances into a single consolidated ordinance, following the lead of the United Kingdom, and the addition of further prohibited grounds of discrimination, such as residency status or being in a de facto relationship. The Study – commissioned by the EOC and conducted by the Gender Research Centre of the Hong Kong Institute of Asia Pacific Studies, the Chinese University of Hong Kong – targeted the glaring absence of legal protection from discrimination for Hong Kong’s LGBTI (lesbian, gay, bisexual, transgender, intersex) community.

By a press release on 17 September 2015, the EOC announced that it plans to submit a report with its recommendations following the DLR to the Government in early 2016. The report resulting from the Study will be released to the public around the end of 2015.[2]

The Progressive Lawyers Group will keep a close eye on the progress of these two projects, and will make appropriate responses when necessary.

On a side note, although freedom of expression ought to be cherished in a open and democratic society, it is also important to emphasise that the enjoyment of this freedom comes with responsibility. We hope that netizens will refrain from processing information online recklessly, and refrain from spreading false rumours. It is vital that one not be misled, and to refrain from actively misleading others, whether wilfully or recklessly.

Career and learning opportunities for Ethnic Minorities

The school year has started, and all students are now back to school, including ethnic minority students. Although the Education Bureau announced new measures in the summer of 2015 to provide after-school support for non-Chinese-speaking students, the language barrier has remained a big challenge to educational or career advancement for ethnic minority students. A recent study showed that 70 per cent of non-degree courses were unsuitable for non-Chinese speakers. The choices for members of ethnic minorities are far more limited than those available to Cantonese-speaking Hongkongers.

A survey by the New Home Association of ethnic minority residents in Hong Kong showed that 90 per cent of interviewees viewed Hong Kong as home. However, the survey also showed that respondents encountered tremendous difficulties in getting employment because of the language barrier, as well as racial discrimination. Employers in Hong Kong tend to employ ethnic Chinese because they assume that ethnic Chinese have a better understanding of the local culture than members of ethnic minorities.

The education of members of ethnic minorities must not be neglected and their career opportunities in Hong Kong must not be undermined. The government, employers and all fellow citizens all share a responsibility to help them fulfil their potential as fellow Hongkongers.

Discrimination Behind Bars

Derek Chan Tak-cheung, secretary general of the League of Social Democrats who was imprisoned for three weeks after egging the Financial Secretary, filed two applications for judicial review of decisions made by the Correctional Services Department (the “CSD”). He claimed that the following treatment and regulations violated the Basic Law, Race Discrimination Ordinance and the International Covenant on Economic, Social and Cultural Rights: (1) Differential catering treatment solely based on inmates’ skin colour and the separation of “Chinese” and “Western” prisoners; and (2) The limit on number of non-religious books a prisoner could receive per month, a limit from which religious books are exempted [3][4].

Months before, a transgender inmate also applied for judicial review of the CSD’s treatment of transgender prisoners. The inmate, a biological male who had been undergoing hormone therapy for several years and intended to complete her sex-reassignment surgery later, was treated by the CSD as a male prisoner and strip-searched by male officers. Her request to continue receiving hormone therapy was also denied for several months. The inmate alleged that the CSD had engaged in inhumane and degrading treatment, which is prohibited, in any circumstances, under the Hong Kong Bill of Rights [5].

Although the Hong Kong Bill of Rights Ordinance permits the rights of lawfully detained persons to be restricted by law in order to serve particular aims, such restrictions cannot be arbitrary or immune from scrutiny. The right to equality and non-discrimination, as a fundamental human right, remains in full force behind prison bars.

Rights of refugees

Did you feel a sense of apprehension on seeing news stories about scores of refugees fleeing for Germany? The definition of refugee means that only extreme circumstances will allow them to remain in other countries. Under the 1951 Refugee Convention, a refugee is someone who “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality, and is unable to, or owing to such fear, is unwilling to avail himself of the protection of that country.”

The rights of refugees and asylum seekers are generally not taken seriously in Hong Kong. The government has not even signed the United Nations 1951 Convention Relating to the Status of Refugees or 1967 Protocol Relating to the Status of Refugees, instruments that even Mainland China has signed. As a result, refugees have turned to the courts for redress. In FB v. Director of Immigration [2009] 2 HKLRD 346, the Court declared the existing screening mechanism not up to the legally required standard of fairness and thus ordered the government to adjust its mechanisms. In other cases, claimants fought for other rights including the right to legal representation, the right not to be expelled, returned or extradited when applying for a torture claim, and the right to have their claim assessed according to law.

In July 2013, the Government announced a new Unified Screening Mechanism for applications relating to asylum (the “USM”). The USM assesses the applicant’s non-refoulement claims based on (a) risks of torture under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT Convention); (b) rights under Article 3 in the Hong Kong Bill of Rights against any torture, other cruel, inhuman and degrading treatment or punishment [6]; and (c) risks of persecution under the 1951 Convention Relating to the Status of Refugees Article 33.

Torture is defined in the CAT Convention as “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.”

Article 3 of the Hong Kong Bill of Rights states that no one shall be subjected to torture or the cruel, inhuman or degrading treatment or punishment.

Article 33 of the 1951 Refugee Convention requires that no Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.